Executive summary from Public Protector, "In The Extreme: Report of the Public Protector on an Investigation into Allegations of a Breach of the Executive Ethics Code by the Minister of Cooperative Governance and Traditional Affairs, Mr Sicelo Shiceka, MP", October 14 2011

(i) IN THE EXTREME is the report of the Public Protector in response to complaints lodged with her office from 10-14 April 2011, in connection with the alleged violation by the Minister of Cooperative Governance and Traditional Affairs, Mr S Shiceka, of the Code of Ethics (the Executive Ethics Code), published by virtue of the provisions of the Executive Members' Ethics Act, 1998. These complaints originated from a newspaper article published on 10 April 2011, alleging that Mr Shiceka misappropriated public funds for his own benefit.

(ii) The essence of the allegations made against Mr Shiceka were that he incurred the following expenditure at the cost of the Department of Cooperative Governance and Traditional Affairs (the Department):

(a) R367 000 in respect of travelling and accommodation for him and his Personal Assistant (Private Secretary) to visit Switzerland. According to the newspaper report, Mr Shiceka went to Switzerland in December 2008 to visit his "then girlfriend", Ms P Masilela who was incarcerated at the Anstalten Hindelbank Prison in Bernë, "while pretending to be on an official visit on World Cup duties".

(b) R640 000 in one year in respect of accommodation for him and his immediate staff at the One and Only Hotel in Cape Town.

(c) R55 793 for the accommodation of Mr Shiceka and Mr and Mrs Mntambo on 9 May 2009 at the One and Only Hotel in Cape Town. It was at the time of the official opening of Parliament. Mr Shiceka reportedly justified the accommodation of Mr Mntambo (an alleged sangoma) at state expense by saying that he was his "father figure".

(d) More than R160 000 in travelling expenditure (flights) over a period of eight months for Mr Shiceka's family members, including "his estranged wife and current girlfriend".

(iii) It was further alleged that, whilst officially on sick leave in March 2011, Mr Shiceka "tried to get his department to pay a hotel bill for the Lesotho Sun in Maseru where he spent four nights with his mother and bodyguard, Bheki Mthethwa."..

(iv) Media reports also suggested that Mr Shiceka was assisted through municipal resources in connection with the construction of his house in the Eastern Cape.

(v) The investigation of the Public Protector that forms the basis of this report was conducted over a period of 5 months and included interviews of current and former officials of the Department, the Ministry of Cooperative Governance and Traditional Affairs and the Department of International Relations and Cooperation. The former Chief Executive Officer of the FIFA Local Organising Committee for the 2010 World Cup and individuals involved in the matters investigated, were also interviewed.

(vi) Voluminous correspondence and documentation relating to the matters concerned were perused and the relevant provisions of the Constitution, 1996, the Executive Members' Ethics Act, the Executive Ethics Code, the Public Protector Act and the Handbook for Members of the Executive and Presiding Officers (Ministerial Handbook) considered and applied.

(vii) The conclusion of the investigation was delayed by the non-availability of Mr Shiceka to be interviewed by the Public Protector, ostensibly due to ill health. Written questions had to be submitted to him in respect of his required response to the evidence obtained during the investigation, to which his advisory team responded on his behalf. Media reports issued during the period of the investigation however, quoted Mr Shiceka as having stated that he was ready to go back to his office, was playing tennis and felt "on top of the world."

(viii) It was noted during the period of the investigation that Mr Shiceka travelled to different destinations in and outside of the country after he was placed on sick leave by the President in February 2011. It also transpired that he stayed in different hotels at the cost of the Department on certain such occasions.

(ix) The Public Protector's general findings are that:

(a) The total expenditure incurred by the State in respect of Mr Shiceka's visit to Switzerland in December 2008 amounted to approximately R 546 864 and not R367 000, as was reported by the media.

(b) The purpose of Mr Shiceka's visit to Switzerland did not relate to the FIFA 2010 World Cup. Its only aim was to visit Ms Masilela at the Anstalten Hindelbank prison in Berne Switzerland, which he did on two occasions.

(c) Mr Shiceka stayed at the One and Only Hotel in 2009 at a total cost to the Department of R280 716. In addition he stayed at the hotel in February 2011 for one night at a cost to the Department of R13 600.

(d) The total cost to the Department in respect of the staff of Mr Shiceka's private office that stayed with him at the One and Only Hotel in 2009, amounted to R 226 746.

(e) The amount of R 55 793 that was reportedly spent in respect of the accommodation of Mr Shiceka and Mr and Mrs Mntambo on 9 May 2009, was in fact spent on the accommodation of Mr Shiceka and three of the staff members of his Private Office. It is included in the amounts referred to in sub-paragraphs (c) and (d) above.

(f) Due to a lack of proper record keeping by Mr Shiceka's Private Office and the travel agency contracted by the Department, it could not be determined with certainty whether the traveling expenditure incurred by the Department in respect of Mr Shiceka's family, exceeded the travel privileges afforded to him by the Ministerial Handbook. Mr Shiceka, however, indicated that he is aware that his travel privileges have been abused and that the matter is being investigated.

(g) Mr Shiceka stayed at the Lesotho Sun Hotel in March 2011, whilst he was on sick leave. The Department provided an accommodation voucher to the hotel in respect of his stay, at Mr Shiceka's insistence, but declined payment when it transpired that his visit was of a private nature. He was advised to pay for his stay in person. To date, the Lesotho Sun had not been paid.

(h) The failure by Mr Shiceka's Private Office to keep proper records and to adequately control the travel benefits afforded to him by the Ministerial Handbook, amounted to maladministration.

(x) The Public Protector's findings in relation to the conduct of Mr Shiceka are that:

Finding 1: Mr Shiceka's conduct in respect of his visit to Switzerland in December 2008 constituted a violation of the Executive Ethics Code, the Public Protector Act and the Constitution

(a) Mr Shiceka deliberately and inadvertently misled the President when he presented the purpose of his visit to Switzerland. In so doing, Mr Shiceka acted in violation of paragraph 2.3 of the Executive Ethics Code. His actions were accordingly unlawful and constituted maladministration.

(b) Mr Shiceka travelled to Switzerland under false pretences and at state expense. In so doing, Mr Shiceka violated the provisions of paragraph 2.3 of the Executive Ethics Code. His actions were accordingly unlawful and constituted maladministration, dishonesty in respect of public money and improper conduct.

(c) By denying to the Public Protector during the investigation that he visited any prison during his trip to Switzerland whilst knowing that he in fact did so, Mr Shiceka acted in violation of paragraph 2.3 of the Executive Ethics Code and section 11 of the Public Protector Act.

(d) Mr Shiceka's conduct referred to in sub-paragraphs (a), (b) and (c) above was not in the best interest of good governance, not performed in good faith and inconsistent with the integrity of his office and of the Government, as contemplated by paragraph 2.1 of the Executive Ethics Code and section 96(2)(b) of the Constitution.

(e) The expenditure incurred by the Department in respect of Mr Shiceka's visit to Switzerland constituted a financial loss to the Department as it was of no benefit or any value to the state.

Finding 2: Mr Shiceka's conduct in respect of his repeated stay at the One and Only Hotel in Cape Town constituted a violation of the Executive Ethics Code and the Constitution

(f) Although the Ministerial Handbook provides that members of the Cabinet can be accommodated in any hotel during official travels, it also requires of them to act responsibly, in good faith and in a manner that is consistent with their office.

(g) By staying in one of the most expensive hotels during his official visits to Cape Town, repeatedly, before and after an official residence was allocated to him, and without requesting his Private Office to take steps to ensure that the expenditure incurred by the Department is reasonable and justifiable in terms of his responsibility to act in good faith and with integrity, Mr Shiceka violated the provisions of paragraph 2.3 of the Executive Ethics Code and section 96(2)(b) of the Constitution.

Finding 3: Mr Shiceka's conduct in respect of inviting Mrs Mntambo to travel to Cape Town at state expense constituted a violation of the Executive Ethics Code and the Constitution

(h) Mr Shiceka was not entitled to cause the state to incur the travel expenses of Mrs Mntambo. By inviting her to travel at state expense to visit him in Cape Town on 2 June 2009, Mr Shiceka failed to act in a manner that is responsible, in good faith, with integrity and that is consistent with his office. His actions therefore violated the provisions of paragraph 2.3 of the Executive Ethics Code and section 96(2)(b) of the Constitution.

(i) The definition of "family" in the Ministerial Handbook is unclear as to the meaning of the word "parent", which could lead to an abuse of the travel privileges of members of the executive.

Finding 4: Mr Shiceka's conduct in respect of his stay at the Lesotho Sun Hotel constituted a violation of the Executive Ethics Code and the Constitution

(j) Mr Shiceka's insistence that the Department provides the Lesotho Sun Hotel with an accommodation voucher in respect of his private stay during March 2011, whilst he was on sick leave and not entitled to such a privilege, constituted fraudulent misrepresentation. Mr Shiceka failed in his responsibility to act in good faith, with integrity and in a manner that is consistent with his office and therefore violated the provisions of paragraph 2.3 of the Executive Ethics Code and section 96(2)(b) of the Constitution. His actions further amounted to dishonesty in respect of public money, and were improper.

Finding 5: Mr Shiceka's conduct in respect of his private accommodation at the expense of the Department whilst on sick leave constituted a violation of the Executive Ethics Code and the Constitution

(k) By requesting the Department to pay for his private accommodation whilst on sick leave and not entitled to such privilege, Mr Shiceka failed to act in good faith and with integrity. His conduct was also inconsistent with his office and therefore violated the provisions of paragraph 2.3 of the Executive Ethics Code and section 96(2)(b) of the Constitution.

(xi) The remedial action that is to be taken, as envisaged in section 182(1)(c) of the Constitution, is the following:

(a) The President to consider taking serious action against Mr Shiceka for his violation of the Executive Ethics Code and the Constitution, referred to in this report.

(b) The Secretary to the Cabinet to ensure that definition of "family" in the Ministerial Handbook is reconsidered with a view to effect an amendment that will eliminate any uncertainties as far as the meaning and interpretation of the word "parent" is concerned.

(c) The Director-General of the Department to take the appropriate action to recover from Mr Shiceka the expenditure incurred by the Department in connection with:

(aa) His visit to Switzerland in December 2008;

(bb) His accommodation at the One and Only Hotel after he took occupation of his official residence in Cape Town; and

(cc) The traveling expenses incurred by the Department in respect of Mrs Mntambo when she visited him in Cape Town in June 2009.

(d) The Director-General of the Department, in consultation and with the assistance of the Department of Public Service and Administration, to take steps to ensure that no retaliatory action is taken against any of the officials of the Department and the Ministry of Cooperative Governance and Traditional Affairs that cooperated with the Public Protector in the investigation referred to in this report.

(e) The Director-General of the Department to take urgent steps to improve the controls and record keeping by the Private Office of the Minister of Cooperative Governance and Traditional Affairs in respect of travel and accommodation privileges provided for in the Ministerial Handbook.

(f) The Director-General of the Department to take urgent steps to ensure that the investigation into the alleged abuse of Mr Shiceka's travelling privileges is concluded and that appropriate measures are taken to deal with its findings and recommendations.

Issued by the Public Protector, October 14 2011 (the full report can be found here - PDF)

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